Pennie v. Res/Opinion of the Court

It was contended in the court below that this latter act of March 4, 1889, violated that provision of the constitution of the United States and of the state which declares that no person shall be deprived of his property without due process of law. The supreme court of the state held that this contention went on the theory that the deceased police officer had at the time of his death a vested property right in the $1,000 of public money which the former statute had directed to be paid to his legal representative upon his death. The petitioner now insists that this statement of his contention below is erroneous; that he did not then contend, and does not now contend, that the fund in the hands of the treasurer was public money, but private money accumulated from the contributions of the members of the police force, and that by Ward's contribution the sum claimed became, on his death, like money due on a life insurance policy, property of his estate. Such, at least, is his position, if we rightly understand it. Some plausibility is given to it by the language of the petition to which the treasurer demurred. The petition alleges that Ward, the deceased, contributed, out of his salary as a police officer, to the police life and health insurance fund the sum of two dollars per month for each month from April 1, 1878, to and including the month of March, 1889, and that the whole amount of his contribution to that fund was $264; that upon his death there was due to the petitioner, as the legal representative of Ward, the sum of $1,000, payable out of that fund; that it was the duty of the treasurer of that fund to pay it; and that there was in his possession at the time $40,000 applicable to its payment. The petitioner now contends that these several allegations are to be taken as literally true, from the fact that the treasurer demurred to the petition. But a demurrer admits only allegations of fact, and not conclusions of law. When, therefore, a plaintiff relies for recovery upon compliance with the provisions of a statute, and attempts to set forth conformity with them, the court will look to that statute, and take the allegations as intended to meet its provisions, notwithstanding the inaccuracy of any statement respecting them. If the pleading misstates the effect and purpose of the statute upon which the party relies, the adverse party, in demurring to such pleading, does not admit the correctness of the construction, or that the statute imposes the obligations or confers the rights which the party alleges. Dillon v. Barnard, 21 Wall. 430, 437. Notwithstanding, therefore, in this case, the petitioner avers that the deceased police officer contributed out of his salary $2 a month, pursuant to the law in question, and, in substance, that the fund which was to pay the $1,000 claimed was created out of like contributions of the members of the police, the court, looking to the statute, sees that, in point of fact, no money was contributed by the police officer out of his salary, but that the money which went into that fund under the act of April 1, 1878, was money from the state, retained in its possession for the creation of this very fund; the balance, $100, being the only compensation paid to the police officer. Though called part of the officer's compensation, he never received it or controlled it, not could he prevent its appropriation to the fund in uestion. He had no such power of disposition over it as always accompanies ownership of property. The statute, in legal effect, says that the police officer shall receive as compensation, each month, not exceeding $100, or such sum as may be fixed after June 1, 1879, by a board of commissioners created under the act, and that in addition thereto the state will create a fund, by appropriating $2 each month for that purpose, from which, upon his resignation for bad health or bodily infirmity, or dismissal for mere incompetency, not coupled with any offense against the laws of the state, a certain sum shall be paid to him, and, upon his death, a certain sum shall go to his legal representative. Being a fund raised in that way, it was entirely at the disposal of the government until, by the happening of one of the events stated,-the resignation, dismissal, or death of the officer,-the right to the specific sum promised became vested in the officer or his representative. It requires no argument or citation of authorities to show that in making a disposition of a fund of that character, previous to the happening of one of the events mentioned, the state impaired no absolute right of property in the police officer. The direction of the state that the fund should be one for the benefit of the police officer or his representative, under certain conditions, was subject to change or revocation at any time, at the will of the legislature. There was no contract on the part of the state that its disposition should always continue as originally provided. Until the particular event should happen upon which the money, or a part of it, was to be paid, there was no vested right in the officer to such payment. His interest in the fund was until then a mere expectancy, created by the law, and liable to be revoked or destroyed by the same authority. The law of April 1, 1878, having been repealed before the death of the intestate, his expectancy became impossible of realization. The money which was to pay the amount claimed had been previously transferred and mingled with another fund and was no longer subject to the provisions of that act. Such being the nature of the intestate's interest in the fund provided by the law of 1878, there was no right of property in him of which he or his representative has been deprived. If the $2 a month retained out of the alleged compensation of the police officer had been in fact paid to him, and thus become subject to his absolute control, and after such payment he had been induced to contribute it each month to a fund on condition that upon his death $1,000 should be paid out of it to his representative, a different question would have been raised with respect to the disposition of the fund, or at least of the amount of the decedent's contribution to it. Upon such a question we are not required to express any opinion. It is sufficient that the $2 retained from the police officer each month, though called in the law a part of his compensation, were, in fact, an appropriation of that amount by the state each month to the creation of a fund for the benefit of the police officers named in that law, and, until used for the purposes designed, could be transferred to other parties, and applied to different purposes, by the legislature.

Judgment affirmed.